JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed for a direction to the respondents to pay the entire retiral benefits with 12% interest per annum as well as amount of increments for the years 2002 to 2004 to the petitioner. It is also prayed that respondent No. 5 may he directed to pay the E.P.F. amount of the petitioner which has illegally been with held by him.
3. The facts in nutshell are that the petitioner was an employee of the U.P.S.R.T.C. It is alleged that the date of birth of the petitioner was recorded as 15.10.1946. He retired from service on 31.10.2004 and his retiral dues including gratuity were calculated for making payment to him. He was required to submit 'No Objection Certificate' for receiving the payment but was not issued the 'No Objection Certificate' as the Pay Section did not endorse that no payment was due to that section. Aggrieved the petitioner filed representation dated 20.2.2005 which remained unactioned for a long time, hence he has filed this writ petition with prayer aforesaid.
4. The counsel for the petitioner contends that there was unauthenticated change made illegally in the date of birth of the petitioner recorded in the service book i.e. his date of birth was changed from 2.7.1940 to 15.10.1946 and that as soon as it came to the knowledge of the respondents the gratuity of the petitioner was recalculated and was reduced from Rs. 1,35,831.00 to 89,152.00 as other retiral dues had already been paid.
5. The short question for determination before this Court is whether the retiral dues of the petitioner are liable to be reduced deducted particularly in view of the fact that he has completed his service and has retired from service on attaining the age of superannuation on 31.10.2004?
6. It is urged by the counsel for the petitioner that in the instant case the petitioner has retired from service on due date, hence the respondents be restrained from deducting the retiral dues on the analogy of principle of estoppel as they can not arbitrarily discriminate the petitioner making him liable for their own fault specially where the matter of date of birth was raised thrice by issuing show notices and the petitioner was thereafter allowed to superannuate by written notice dated 30.10.2004.
7. The counsel for the petitioner has relied upon 1999, Vol. 3 U.P.L.B.E.C. 1892, Vishambar Singh v. Co-operative Cane Development Union Ltd., Bijnor and Anr. wherein it has been held that correction of age at the fag end of service can not be entertained.
8. He has further relied upon para 3 of the judgment in 2002 Vol. 1 U.P.L.B.E.C.-439, Nani Gupal Dutta v. Union of India and Ors. wherein it has been held that in pursuance of the interim order granted and the petitioner having received the full benefit of salary, he would not be denied the benefit of pension from enhanced pay.
9. Reliance has also been placed by the counsel for the petitioner upon paragraph 6 in 1999, Vol. 3 A.W.C. page-1999, Chairman, Admission, Committee, Combined Entrance Examination, 1998, M.L.N. Regional Engineering College, Allahabad and Anr. v. Shailesh Kumar wherein it has been held that the appellants/State can not be permitted to capitalize on their own fault.
10. The counsel for the respondents submits that the petitioner was due to retire on 1.8.1998 but he illegally continued in service for 6 years and has drawn salary which is liable to be adjusted. He further submits that when the petitioner joined service as Labour he had declared his date of birth as 2.7.1940. Reference in this regard has been made to Annexures C.A.1 to C.A.3 to the counter affidavit. Annexure CA-1 is the application form for appointment on job wherein the petitioner has declared his date of birth as 2.7.1940 and educational qualification as 7th class. Annexures CA-2 and 3 are forms of verification in which also his date of birth has been mentioned as 2.7.1940 and verified by two different authorities, which are duly signed by the petitioner declaring his date of birth. Reference has also been made to Annexure CA-4, which is photocopy of the service book. A perusal of this Annexure shows that the date of birth mentioned therein as 2.7.1940 has been scored out and thereafter 15.10.1946 has been written in different inks and handwriting. The cutting in date of birth is also not authenticated by any authority.
11. It is submitted that as the cutting in the service book by which the date of birth of the petitioner was changed was not verified by any authority, hence in view of the Regulation 14(2) and 14(3) of the U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981 the declaration made by him regarding age at the time of his entry in the service is to be taken as final. Regulation 14(2) and (3) is as under:
14(2) A person shall at time of his initial appointment produce certificate of having passed High School examination or any other equivalent or higher first public examination as proof of age. Where a candidate has not passed any such examination or, for reasons beyond his control, it is not possible to produce such certificate, he shall produce other proof of age to the satisfaction of the appointing authority.
(3) Date of birth of an employee recorded in the certificate of examination, referred to in Sub-regulation (2), or, where an employee has not passed any such examination, the date of birth or age recorded in his service book at the time of his entry into service shall be deemed to be his correct date of birth or age as the case may be and no application or representation for correction of the date of birth or age shall be entertained in any circumstances whatever.
12. The counsel for the respondents further submits that a show cause notice dated 12.5.1999 was given to the petitioner asking him to submit proof of his age. The petitioner vide reply-dated 1.6.1999 without any proof of age as required under Regulation 14(2) and 14(3) of the Regulations appended Junior High School Certificate and requested that his Junior High School certificate may be got verified. The petitioner was asked again by letter dated 8.8.2001 to submit his reply regarding age of proof but he again did not submit any proof along with his reply dated 10.9.2001. For the third time the petitioner was issued show cause notice dated 24.9.2001 asking to submit his proof of age. This notice was replied by the petitioner vide reply dated 20.2.2002 in which he showed his inability to get his Junior High School certificate verified and requested that the same may be got verified by the respondents.
13. The counsel for the respondents further submits that thereafter the respondents wrote to the DIOS, Etawah vide letter dated 7.3.2002 requesting him to get the certificate verified but the matter remained pending due to transfer of the officers of the UPSRTC and petitioner was benefited by 6 years of service in the mean time. Ultimately by order dated 17.12.2004 the Service Manager/Appointing authority held that the date of birth of the petitioner is 2.7.1940 and as such he would retire w.e.f. 1.8.1998. The order has been appended as Annexure-SCA-1 to the supplementary counter affidavit.
14. It is urged by the counsel for the respondents that though the petitioner was aggrieved by order dated 17.12.2004 but he did not challenge the same in the writ petition, hence this writ petition has been filed concealing the material facts and in view of the fact that the petitioner himself disclosed his date of birth as 2.7.1940 at the time of entry in service hence in view of Regulations 14(2) and 14(3) the writ petition is liable to be dismissed with costs.
15. Sri Dhananjay Awasthi, counsel appearing for respondent No. 5 submits that E.P.F. amount has not been paid to the petitioner because of non-receipt of application preceded with form and as soon as the application with form is submitted the E.P.F. will be released to the petitioner without any delay.
16. It appears that the petitioner has not passed High School or equivalent examination and Junior High School Certificate is not relevant for the purpose of controversy involved in this case as the petitioner has passed Junior High School after his entry in service. The petitioner had himself disclosed his date of birth as 2.7.1940 which was initially recorded in his service book and scored out later on. hence in view of Regulations 14(2) and 14(3) of the Regulations the writ petition is liable to be dismissed.
17. Admittedly, the petitioner was given several opportunities to submit his proof of age. In his reply the petitioner has only given Junior High School Certificate and requested the respondents to get the same verified from the District Inspector of Schools. It is also admitted fact that the petitioner has passed the Junior High School after entry in service, as such Junior High School Certificate is of no relevance particularly in view of the Regulations 14(2) and (3) of the Service Regulations. 1981. No irrcorrigible proof of his age has been submitted by the petitioner either before the authority or before this Court and continued in employment even though cuttings in service book were not authenticated by any competent authority.
18. It is settled law that the date of birth recorded in the service book is to be relied upon for the purpose of superannuation. The petitioner also did not challenge the order dated 17.12.2004 and has filed this writ petition concealing the aforesaid facts from this Court. It is apparent that some one had changed the date of birth from 2.7.1940 to 15.7.1946 except the petitioner. Since the petitioner has not submitted any irrcorrigible proof of his age as required, in view of Regulations 14(2) and (3) of the Service Regulations the date of birth recorded in the service book i.e. 2.7.1940 is taken to be correct date of birth. The petitioner is not entitled to any service benefits after he has denied the age of superannuation taking it as 15.7.1946.
19. For the reasons stated above, the writ petition is dismissed. No order is passed as to costs.